Except for Pennsylvania (in limited circumstances), Maryland, and Virginia, none of the states in Region III recognizes online schools as educational institutions.  Therefore, a legal opinion should be requested from OGC on a case-by-case basis relating to title II issues for students attending online schools in Delaware, District of Columbia, and West Virginia.

QUESTION PRESENTED

In January 2010, OGC was asked whether the states in Region III recognize online schools in order to determine whether these schools are educational institutions for SSA purposes, as defined in POMS RS 00205.200.

SUMMARY

Our updated research indicates that three states in Region III, Pennsylvania, Maryland, and Virginia, now recognize online schools as educational institutions. Pennsylvania, however, recognizes only one type of online school—cyber charter schools that have been approved by the state.

BACKGROUND

Under POMS RS 00205.295, a child attending an online school may be a full-time student if the child meets SSA’s standards for full-time attendance; the law of the state in which the student resides recognizes online schools as educational institutions; the online school the student attends meets the requirements of state law in which the student lives; and the student meets all other requirements for benefits.

DISCUSSION

Pennsylvania (PR 08205.042)

There has been no change in Pennsylvania law with regard to online schools since January 2010. Pennsylvania recognizes one type of online school as an educational institution—cyber charter schools that have been approved by Pennsylvania’s Department of Education. On July 1, 2002, Pennsylvania established cyber charter schools under 24 Pa. Cons. Stat. Ann. § 17-1745-A. Pennsylvania defines a cyber charter school as “an independent public school established and operated under a charter from the Department of Education and in which the school uses technology in order to provide a significant portion of its curriculum and to deliver a significant portion of instruction to its students through the Internet or other electronic means.”

24 Pa. Cons. Stat. Ann. § 17-1703-A. The curriculum of a cyber charter school must meet the requirements of 22 Pa Code, Ch. 4, et seq. (or any subsequent regulations promulgated to replace it), dealing with academic standards and assessment for schools, generally.

24 Pa. Cons. Stat. Ann. § 17-1747-A(1). Pennsylvania does not recognize any other type of online school as an educational institution.

Delaware (PR 8205.009)

There has been no change in Delaware law with regard to online schools since January 2010. Our research revealed that Delaware does not recognize online schools as educational institutions. Delaware’s requirements for schools are outlined at 14 Del. Code Regs § 500, et seq., dealing with state standards for curriculum and instruction.

Maryland (PR 08205.023)

Effective September 1, 2011, the Maryland state legislature approved legislation establishing virtual schools. See MD EDUC, §§ 7-1401-1408. Under Maryland law, county boards of education are permitted to establish virtual schools, subject to the approval of the state Department of Education. See MD EDUC, § 7-1402. Once a Maryland virtual school is approved, it is subject to all applicable federal and state laws and regulations governing the operation of a public school, and any student who is eligible for enrollment in a Maryland public school may enroll in a virtual school. Id. Virtual schools in Maryland are required to provide each enrolled student with: 1) access to a sequential curriculum approved by the state Board of Education that meets or exceeds the standards adopted by the county board in the county of the virtual school’s principal place of business; (2) the same length of time for learning opportunities per academic year that is required for public school students, unless the virtual school can show that a student has demonstrated mastery or completion of the subject area; and (3) regular assessment in the core areas of instruction as required by regulations adopted by the State Board of Education. See MD EDUC, § 7-1403. A virtual school in Maryland is also required to maintain an administrative office in Maryland that will be considered to be its principal place of business. See MD EDUC, § 7-1406. (2016 Update: please note that the Maryland State Board of Education regulations provide that a school may not operate without a Certificate of Approval from the State Board. Md. Admin. Code § 13A.09.09.01B (2015)).

Virginia (PR08025.052)

Effective July 1, 2010, the Commonwealth of Virginia approved legislation establishing virtual school programs. See Va. Code Ann. § 22.1-212.23. A virtual school program is defined as a series of online courses (i) with instructional content delivered primarily electronically using the Internet or other computer-based methods; (ii) taught by a teacher primarily from a remote location, with student access to the teacher given synchronously, asynchronously, or both;

(iii) delivered as a part-time or full-time program; and (iv) having an online component with online lessons and tools for student and data management. Id. The virtual school program must be provided by a “multidivision online provider.” A “multidivision online provider” is defined as

a private or nonprofit organization that enters into a contract with a local school board to provide online courses or programs through that school board to students who reside in Virginia both within and outside the geographical boundaries of that school division; (ii) a private or nonprofit organization that enters into contracts with multiple local school boards to provide online courses or programs to students in grades K through 12 through those school boards; or (iii) a local school board that provides online courses or programs to students who reside in Virginia but outside the geographical boundaries of that school division. See Va. Code Ann. § 22.212.23. “Multidivision online providers” must be approved by the Superintendent of Public Instruction. See http://www.doe.virginia.gov/instruction/virtual_learning/virtual_schools/ (last visited April 29, 2013). In the case of state-recognized virtual private schools, the Virginia Board of Education has authorized the Virginia Council for Private Education (“VCPE”) to oversee accreditation of nonpublic preschool, elementary, and secondary schools in the Commonwealth. See Va. Code Ann. § 22.1-19; see also http://www.vcpe.org (last visited April 29, 2013).

West Virginia (PR 08025.054)

There has been no change in West Virginia law regarding online schools since January 2010.

Our research revealed that West Virginia does not recognize online schools as educational institutions. West Virginia’s requirements for schools are outlined in W.Va.Code. R. § 126-42-1, et seq., dealing with Assuring the Quality of Education: Regulations for Education Programs.

District of Columbia (PR 08025.010)

There has been no change in District of Columbia law regarding online schools since January 2010. Our research revealed that the District of Columbia does not recognize online schools as educational institutions. The District of Columbia’s requirements for schools are outlined in D.C. Mun. Regs., tit. 5, § 300, et seq., dealing with curriculum and testing.

CONCLUSION

Except for Pennsylvania (in limited circumstances), Maryland, and Virginia, none of the states in Region III recognizes online schools as educational institutions. Therefore, with the exception of students conforming to the requirements for online schools under Pennsylvania, Maryland, and Virginia law, a legal opinion should be requested from OGC on a case-by-case basis relating to title II issues for students attending online schools.

Nora Koch,

Acting Regional Chief Counsel

By:

Heather Benderson

Assistant Regional Counsel

Anne von Scheven

Assistant Regional Counsel

The Southern Baptist Academy online program offers high school courses via the Internet. There is conflicting evidence regarding where the Southern Baptist Academy is located (i.e. Florida, Texas, or Pennsylvania). To be an educational institution (EI) for SSA purposes, a school must provide elementary or secondary education under the law of the state or other jurisdiction in which it is located. SSA addressed the state laws of Florida, Texas, and Pennsylvania and determined that the Southern Baptist Academy is not an EI for SSA purposes under the Florida, Texas, or Pennsylvania law.

This memorandum is in response to your request for a legal opinion on whether The Southern Baptist Academy, which offers online high school courses via the Internet (http:/thesouthernbaptistacademy.org/), meets the definition of an educational institution under the Social Security Act (Act). ^[2] We believe that The Southern Baptist Academy online program is not an educational institution under the Act, and therefore, Brianna and Amy’s entitlements to child’s insurance benefits on the number holder’s account stopped once they reached 18 years of age.

BACKGROUND

The facts indicate that in December 1994, Brianna and Amy became entitled to child’s insurance benefits. Both Brianna and Amy reside in Arkansas. Brianna and Amy turned age 18 in December 2010, after which the agency terminated their child’s insurance benefits. Prior to turning age 18, Brianna and Amy completed SSA Form 1372, Student’s Statement Regarding School Attendance. Each stated that she had been attending The Southern Baptist Academy, based in Philadelphia, Pennsylvania, since September 8, 2009; that she was scheduled to attend classes for 900 hours a year, which averaged 25 hours per week; that her current school year would end on June 17, 2011; and that she expected to graduate in June 2011.

The Southern Baptist Academy registrar certified that the information Brianna and Amy provided on the SSA Form 1372 was correct. The registrar also stated that the school’s course of study was at least 13 weeks in duration. Contrary to Brianna and Amy’s statement that The Southern Baptist Academy is based in Pennsylvania, however, the registrar sent the agency a letter on October 6, 2010, stating that the school is registered in Florida. The Southern Baptist Academy website provides conflicting statements regarding its location. On one page the website states, “The Southern Baptist Academy is an independent private Christian K-12 online homeschool program that is registered as a private school by the Texas Department of Education.” ^[3] (http://thesouthernbaptistacademy.org/accreditation.php) Elsewhere, however, the website states, “The Southern Baptist Academy is accredited by the National Association of Private Schools Accreditation Alliance and is registered with the Florida Department of Education.” (http://thesouthernbaptistacademy.org/faq.php#Is_the_Academy_accredited or_Licensed) Nevertheless, all addresses directing contact with the school are in Philadelphia, Pennsylvania. ^[4] (http://thesouthernbaptistacademy.org/faq.php)

The Sherwood, Arkansas, Field Office contacted the Florida Board of Education to ask whether The Southern Baptist Academy is registered in Florida. The Florida Board of Education stated that the school appears in their directory as located in Florida, but they did not have any information about the school operating as an online educational entity. ^[5] The Florida Board of Education indicated that it was possible that The Southern Baptist Academy operates an online school because the school can determine its own method of instruction. ^[6]

DISCUSSION

The Act provides for the payment of child’s insurance benefits to certain applicants over the age of 18 who are full-time elementary or secondary school (educational institution) students. ^[7] See 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5); POMS RS 00205.001(A). Under the Act, an educational institution is a school that provides elementary or secondary education, as determined under the law of the state or other jurisdiction in which it is located. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.300.

Under the regulations, in order for a child to be eligible for child’s insurance benefits, she must attend a school that provides elementary or secondary education as determined under the law of the state in which the school is located. ^[8] See 20 C.F.R. § 404.367(a). Participation in the following programs also meets the requirements of 20 C.F.R. § 404.367(a): 1) a student is instructed in secondary education at home in accordance with the home school law of the State or other jurisdiction in which she resides ^[9] ; or 2) a student is a in an independent study secondary education program in accordance with the law of the State or other jurisdiction in which the student resides and that is administered by the local school or school district/jurisdiction ^[10] . 20 C.F.R. § 404.367(a)(1), (2). Accordingly, a student may meet the requirements set out by 20 C.F.R. § 404.367(a) if either the school itself is deemed an educational institution in the state in which it is located or the student’s curriculum qualifies under the law of the state in which the student resides.

In addition to meeting the requirements of 20 C.F.R. § 404.367(a), the student must be in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and carry a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). If the student is enrolled in the home schooling program discussed in 20 C.F.R. § 404.367(a)(1), the student must be carrying a subject load which is considered full-time for day students under standards and practices set by the state in which she resides. 20 C.F.R. § 404.367(b). Finally, the student’s scheduled attendance must be at least 20 hours per week, unless the school attended does not schedule at least 20 hours per week and going to that particular school is the student’s only reasonable alternative or the student’s medical condition prevents her from having scheduled attendance of at least 20 hours per week. 20 C.F.R. § 404.367(c)(1), (2).

The Southern Baptist Academy is not an educational institution because it does not provide elementary or secondary education, as determined under the laws of the State in which it is located. 20 C.F.R. § 404.367(a).

We first address the question of whether The Southern Baptist Academy qualifies as an educational institution under the law of the state where it is located. 20 C.F.R. § 404.367(a). There is conflicting evidence regarding where The Southern Baptist Academy is located. Thus, we will address the state laws of Florida, Texas, and Pennsylvania because the regulations require us to consider the state laws where the school is located. ^[11]

Florida

Florida requires regular school attendance for children ages six through sixteen. Fla. Stat. § 1003.21 (2011). A child is in regular school attendance if she attends a public school, a parochial school, a private school, home education, or private tutoring. Fla. Stat. § 1003.01. Florida law defines a private school as a non-public school that provides instructional services and is supported in whole or in part by tuition charges, endowments, or gifts. See Florida Stat. §§ 1002.01, 1003.01(2), 13(c). The Southern Baptist Academy is a private school, as it is operated through the tuition of its students by a nonprofit organization, Learning by Grace, Inc. ^[12]

There is no Florida statutory authority regulating the establishment of private schools in Florida. See State v. M.M., 407 So.2d 987 (Fla. 1981). However, a private school must file an annual survey form with the Florida Department of Education to be registered in the state of Florida. Fla. Stat. § 1002.42. This annual survey form certifies that each of the private schools’ employees are fingerprinted and undergo a criminal background check. See Florida Stat. § 1002.42. The Florida Department of Education does not use this survey form to “accredit” a private school; rather the Florida Department of Education’s database of private schools exists solely as a “service to the public, and not to regulate, control, approve, or accredit private educational institutions.” Florida Stat. § 1002.42(2)(h).

As of November 10, 2011, The Southern Baptist Academy had not filed its annual survey form with the Florida Department of Education for the 2011-2012 school year and was not included in the department’s Private School Database. Therefore, Florida law does not consider The Southern Baptist Academy a private school and Brianna and Amy are not in regular school attendance, as Florida law defines.

Texas

Texas requires compulsory school attendance for children ages six to eighteen. Tex. Educ. Code Ann. § 25.085. However, a child is exempt from the requirements of compulsory school attendance if the child attends a private or parochial school that includes in its course a study of good citizenship. Tex. Educ. Code Ann. § 25.086. There is no evidence that the Southern Baptist Academy has a physical location in Texas. The Southern Baptist Academy lists its degree requirements on its website, but does not include a course in good citizenship. (http://www.thesouthernbaptistacademy.org/diplomarequire.php) Thus, The Southern Baptist Academy does not satisfy the minimum requirements for either a private or parochial school in the state of Texas.

Pennsylvania

Pennsylvania requires compulsory school attendance for children ages eight through seventeen. 24 Pa. Cons. Stat. Ann. §§ 13-1326, 13-1327. A child who attends a private school can satisfy the compulsory school attendance requirement in one of two ways. Under the first exception, the child satisfies the compulsory school attendance requirement if she is enrolled in a day school operated by a bona fide church or other religious body and that school provides a minimum of 180 days of instruction or 900 hours per year of instruction at the elementary level or 990 hours per year of instruction at the secondary level. 24 Pa. Cons. Stat. Ann. § 13-1327. Under the second exception, the child satisfies the compulsory school attendance requirement if she is enrolled in a day or boarding school accredited by an accrediting association approved by the State Board of Education. Id.

The Southern Baptist Academy does not satisfy the first exception because it is operated by a non-profit corporation, not a bona fide church or other religious body. The school also only requires 900 hours per year of instruction at the secondary level, falling short of the 990 hours that Pennsylvania law requires. Finally, the school does not have a minimum number of days that the child must attend. Thus, the school does not satisfy the first exception.

The Southern Baptist Academy also does not satisfy the second exception because it is not listed as a Licensed/Registered School on the Pennsylvania Department of Education website. (http://www.education.state.pa.us/portal/server.pt/community/list_of_schools/7422) In addition, the Pennsylvania Board of Education has not approved the National Association of Private Schools Accreditation Alliance, the organization that accredits The Southern Baptist Academy, as an approved accrediting agency. Id. Regardless, even if The Southern Baptist Academy were registered in Pennsylvania, Pennsylvania considers internet schools to be the equivalent of correspondence schools. See 24 Pa. Cons. Stat. Ann. § 6503(a). The agency recognizes that, generally, a student is not in full-time attendance based on taking correspondence school classes, even if the correspondence school meets the definition of an educational institution. See POMS RS 00205.330(B). Thus, Pennsylvania does not recognize The Southern Baptist Academy as a private school that satisfies the state’s compulsory school attendance requirement.

The Southern Baptist Academy does not instruct Brianna and Amy in secondary education at home in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1).

Brianna and Amy reside in Arkansas. Thus, we next consider whether The Southern Baptist Academy provides secondary education at home to Brianna and Amy in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1). While Arkansas recognizes a home school program as an educational institution that can provide secondary education, we conclude that Arkansas would not recognize The Southern Baptist Academy as a home school program. Under Arkansas law, parents and guardians may teach their children in a home school program. See Ark. Code Ann. §§ 6-15-501, 6-15-503, 6-15-504. Because The Southern Baptist Academy is not a parent or guardian of the students enrolled in its program, however, it fails as a threshold matter to qualify as a home school program under Arkansas law. See Ark. Code Ann. § 6-15-501. Furthermore, The Southern Baptist Academy does not qualify as a home school program under Arkansas law because it does not meet Arkansas statutory reporting and testing requirements. See Ark. Code Ann. § 6-15-503(a)(1). Under Arkansas law, parents or guardians desiring to provide a home school for their children must give written notice to the superintendent of their local school district of their intent to provide a home school for their children and sign a waiver acknowledging that the State of Arkansas is not liable for the education of their children during the time that the parents choose to home school. Ark. Code Ann. §§ 6-15-503, 6-15-504. There is no evidence that anyone gave written notice to the superintendent of Brianna and Amy’s local school district regarding their attending a home school program. In addition, to qualify as a home school program, each student must take a standardized achievement test that the Arkansas Department of Education administers each year. Ark. Code Ann. § 6-15-504(b)(1)(A). There is also no evidence that Brianna or Amy have taken or will take the Arkansas Department of Education standardized achievement test. Thus, The Southern Baptist Academy does not qualify as a home school program under Arkansas law.

The Southern Baptist Academy does not provide Brianna and Amy an independent study secondary education program in accordance with Arkansas law. 20 C.F.R. § 404.367(a)(2).

We next address the issue of whether The Southern Baptist Academy qualifies as an independent study program ^[13] under Arkansas law. 20 C.F.R. § 404.367(a)(2). The regulations define an independent study program as an elementary or secondary education program in accordance with the law of the state or other jurisdiction in which the student resides which the local school or school district administers. 20 C.F.R. § 404.367(a)(2). The POMS further define an independent study program as a program that local education agencies, such as high schools or school districts, run in accordance with specific state law requirements, where the credits earned count toward high school graduation. POMS RS 00205.285(A). Independent study programs involve periodic teacher contact, direction, and testing on campus, with the student making academic progress generally through independent study at home. Id.

In Arkansas, the Department of Education oversees and coordinates the implementation of distance learning, ^[14] which conducts independent study programs, in elementary and secondary public schools and promulgates rules and regulations to establish appropriate adult supervision in distance-learning courses. See Ark. Code Ann. §§ 6-47-201(a)-(b), 6-47-302(a). The Department of Education must approve all distance learning courses, including out-of-state course providers, before an educational institution may import those courses through distance learning. See Ark. Code Ann. §§ 6-47-201(c)(1), 6-47-302(b)(1); see also RGDL, Rule 4.01. ^[15] The Department of Education requires that all distance-learning courses have an appropriately licensed or approved primary instructor; ^[16] that an adult facilitator ^[17] must be present when student achievement assessments used to determine a student’s final grade are administered in a distance-learning course; and that all distance learning courses must comply with the Arkansas Standards for Accreditation. See RGDL Rules 4.02, 4.04, 4.05. The only representation that The Southern Baptist Academy program makes is that it is accredited by the National Association of Private Schools Accreditation Alliance. There is no evidence that the Arkansas Department of Education has approved The Southern Baptist Academy courses; that The Southern Baptist Academy has appropriately licensed or approved primary instructors; that The Southern Baptist Academy has an adult facilitator during student achievement assessments; or that The Southern Baptist Academy online courses comply with the Arkansas Standards for Accreditation. Thus, The Southern Baptist Academy does not qualify as an independent study program under Arkansas law.

Brianna and Amy are not in full-time attendance at The Southern Baptist Academy. 20 C.F.R. § 404.367(b)-(c).

Next, we address the issue of whether Brianna and Amy are full-time students at The Southern Baptist Academy. 20 C.F.R. § 404.367(b)-(c). As previously noted, in order to be eligible to receive child’s insurance benefits, an applicant who is 18 years of age but has not attained age 19 must be a full-time student, based on the agency’s regulatory standards, at an educational institution. See 42 U.S.C. 402(d)(1)(B); POMS RS 00205.285. The agency considers a student to be a full-time student if she attends a school that provides a secondary education under the law of the state in which the school is located and if the student: (1) is in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) carries a subject load considered full-time for day students under the institution’s standards and practices; and (3) attends school at least 20 hours a week. See 20 C.F.R. § 404.367(a), (b), (c); POMS RS 00205.300(C). The Southern Baptist Academy requires its students to complete 900 hours within 36 weeks, an average of 25 hours a week. The school records the amount of time that a student spends online in courses, as well as the offline time the student spends in “Study Hall.” In addition, the school permits the student to submit a log of up to 110 hours for participation in “Joy Directed Activities.”

However, there is no specific time that a student must attend school each day or each week, as each student is permitted to work at her own pace. (http://thesouthernbaptistacademy.org/faq.php#Details_flexible_schedule).

Although Brianna and Amy stated that they must average 25 hours of classes a week, the school does not have any weekly attendance requirement. No documentation shows that Brianna and Amy have attended school for at least 20 hours a week. Thus, the agency cannot conclude that Brianna and Amy are in full-time attendance at The Southern Baptist Academy.

CONCLUSION

In conclusion, The Southern Baptist Academy is not an educational institution under Florida, Texas, or Pennsylvania. Brianna and Amy were not enrolled in home school or an independent study program under Arkansas law. We also cannot conclude that Brianna and Amy are full-time students at The Southern Baptist Academy. Therefore, Brianna and Amy are not full-time students at an educational institution, and their entitlement to child’s insurance benefits on the number holder’s account stopped once they turned 18.

Michael McGaughran

Regional Chief Counsel

By_________

James D. Sides

Assistant Regional Counsel

The Penn Foster High School (PFHS) is a Pennsylvania online high school. We look to Pennsylvania law to determine whether PFHS is an educational institution (EI) for SSA purposes. Although Pennsylvania recognizes private Internet schools similar to the PFHS, the schools are considered to be the equivalent of correspondence courses. SSA does not recognize a student to be in full-time attendance based on taking correspondence courses even if the school meets the definition of an EI. In addition to attending an EI, a student must also meet federal full-time attendance (FTA) standards. 

Even if we could consider PFHS to be an EI, a student’s scheduled school attendance must be at the rate of at least 20 hours per week unless certain exceptions apply. PFHS does not require a student to keep track of or report his or her time in attendance, nor did it provide certification of full-time attendance. Attendance at PFHS does not meet the federal requirements for full-time attendance, and we cannot establish entitlement to student benefits for a student at PFHS.

You have asked us to review whether Kyle , an Illinois resident, can be considered a full-time secondary school student, as defined under section 202(d)(7) of the Social Security Act, by virtue of his being enrolled at Penn Foster High School, a Pennsylvania online high school. For the reasons stated below, we believe that he cannot.  However, you may want to develop further whether Kyle has an emotional/medical condition that prevents him from attending school for the 20 hours a week required to be considered a full-time student.   

BACKGROUND

Penn Foster (http://www.pennfoster.edu) is an online high school based in Pennsylvania that offers students an opportunity to earn their high school diplomas at home with online courses.  Its website indicates that in as little as nine months for each year of high school a student needs, a student can get his or her high school diploma through Penn Foster.  It also offers the opportunity for a student to take only the class(es) he or she needs to graduate. It is licensed by the Pennsylvania State Board of Private Licensed Schools and accredited by the Middle States Commission on Secondary Schools.  Kyle has been enrolled with Penn Foster since August 20, 2008 and expects to graduate on August 20, 2011. 

Kyle’s mother clarified that she does not home school Kyle, although she is available to help him with his Penn Foster coursework. In People v. Levisen, 90 N.E.2d 213 (Ill. 1950), the Illinois Supreme Court held that home schooling could be considered a “private school” if the person with custody or control of the child shows that he or she has in good faith provided an adequate course of instruction in the branches of education taught to the children of corresponding age and grade in public schools. Id. at 215. The court stated that the burden is not satisfied if the evidence fails to show a type of instruction and discipline having the required quality and character. Id. Kyle’s mother has advised that she is not home-schooling Kyle, and it is also not clear whether the Penn Foster curriculum would satisfy Illinois standards in any event. 

DISCUSSION

Section 202(d)(1) of the Social Security Act provides that, under certain circumstances, a child of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, shall be entitled to child’s insurance benefits (CIB). One of the requirements for CIB eligibility for a non-disabled child is that the child must be unmarried and either under 18 or a full-time elementary or secondary school student and under the age of 19. 42 U.S.C. § 402(d)(1)(B). For a child that was never under a disability, CIB benefits terminate when the child turns 18 years old if he or she is not a full-time elementary or secondary school student; and benefits terminate at age 19 regardless of the child’s educational status. 42 U.S.C. § 402(d)(1)(F). 

Section 202(d)(7)(A) of the Social Security Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance as a student at an elementary or secondary school as determined in accordance with regulations prescribed by the Commissioner. The Social Security Act states at section 202(d)(7)(C)(i) that an “elementary or secondary school” is a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.

Similarly, the regulations explain at 20 C.F.R. § 404.367(a) that a person is a full-time elementary or secondary school student if he or she attends a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which the school is located.

The POMS likewise explain, at RS 00205.200(A), that an educational institution (EI) is a school that provides elementary or secondary education as determined under the law of the state or other jurisdiction in which it is located. The regulations further provide that participation in certain programs can also meet the requirements of paragraph (a), even if the school is not an EI.  For example, a person is a full-time secondary school student if he or she is instructed in secondary education at home in accordance with the home school law of the State or other jurisdiction in which he or she resides. 20 C.F.R. § 404.367(a)(1). In this case, however, Kyle was not being home-schooled.

Finally, the regulations define what it means to be a “full-time” student. In order to be considered a “full-time elementary or secondary school student,” the student must be in “full-time attendance” in a day or evening noncorrespondence course of at least thirteen-weeks duration and carrying a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). The regulations provide at 20 C.F.R. § 404.367(c) that a student is in full-time attendance if his or her scheduled attendance is at least 20 hours per week, unless certain exceptions discussed below apply.

Here, for purposes of determining whether Penn Foster is an EI, Pennsylvania law would appear to apply. Penn Foster represents on its website that it is based in Pennsylvania.  Penn Foster is incorporated in Pennsylvania and is licensed by the Pennsylvania State Board of Private Licensed Schools.

POMS PR 08205.023 explains that Pennsylvania, generally, recognizes only one type of online school as an EI — cyber charter schools approved by and operating under a charter provided by the state’s Department of Education. Technically speaking, Pennsylvania does recognize private internet schools like this one and provides a licensing procedure for those schools. See 24 Pa. Cons. Stat. Ann. § 6502.  Indeed, Penn Foster received its state licenses from the State Board of Private Licensed Schools. However, these schools are considered to be the equivalent of correspondence schools. See 24 Pa. Cons. Stat. Ann. § 6503(a).  The Social Security Administration recognizes that, generally, a student is not in full-time attendance based on taking correspondence school classes, even if the correspondence school meets the definition of an EI. POMS RS 00205.330(B).              

Here, in fact, it does not appear that “attendance” at Penn Foster would meet the federal requirements for full-time attendance, a requirement that Kyle has to meet even if Penn Foster could be considered an EI under Pennsylvania law. See 20 C.F.R. § 404.367(a), (a)(1), (b), (c).  The regulations provide at 20 C.F.R. § 404.367(c) that a student is in full-time attendance if his or her scheduled attendance is at least 20 hours per week, unless certain exceptions apply. The POMS also states that “[s]cheduled attendance must be at the rate of at least 20 hours per week.” POMS RS 00205.310. 

In Form SSA-1372-BK (the Student’s Statement Regarding School Attendance), Kyle does not indicate the number of hours per week he is scheduled to “attend” Penn Foster.  He simply states, “Internet.” Penn Foster’s website is vague. It simply states that in as little as nine months for each year of high school a student needs, he or she can have a high school diploma. Kyle’s mother advised that Kyle keeps track of how long he spends on his coursework, but Penn Foster does not require him to keep track of or report his hours. Under POMS RS 00205.295, the student should give Form SSA-1372-BK to a school official for certification and return it to the field office. If the school does not certify that the student is in full-time attendance, the claim should be disallowed. Here, the school’s chief academic officer did not complete the certification. Instead, she simply provided a vague letter which does not address the specific attendance questions set forth in the certification. Rather, she advised that the “program is conducted entirely by independent study.”

Although Penn Foster did not complete the required attendance certification and does not appear to require at least 20 hours of scheduled attendance, a finding of full-time attendance may still be justified if attending this school is the only reasonable alternative for Kyle, or if a medical condition precludes him from 20 hours of attendance. See 20 C.F.R. § 404.367(c)(1)-(2).  It appears that Kyle does not meet either of these exceptions. Kyle’s mother stated that there are other high schools in the area that Kyle could attend.  She further responded that Kyle does not have any medical conditions that prevent him from attending a public school, although he was not adjusting well in the traditional public school due to emotional problems. You may want to develop this further if you believe that Kyle may have a medical/emotional condition that is preventing him from attending school for 20 hours a week.       

CONCLUSION

For the above reasons, we conclude that “attendance” at Penn Foster would not meet the federal requirements for full-time attendance. As such, we conclude that Kyle is not eligible for CIB based on his enrollment at Penn Foster High School. However, you may want to develop further whether he may meet an exception to the full-time attendance requirement based on a medical/emotional condition that may prevent him from attending a school for 20 hours a week. 

Donna L. Calvert

Regional Chief Counsel Region V

By: ____________________

Brian Alesia

Assistant Regional Counsel

The Pennsylvania Leadership Charter School (PALCS) provides secondary education under Pennsylvania law and is, therefore, an educational institution (EI) for SSA purposes. PA recognizes cyber charter schools approved by the PA Department of Education. If a student alleges attendance at a cyber charter school in PA other than PALCS, ask him or her for evidence that the PA Department of Education approved it. If the PA Department of Education has not approved the online school that the student attends, the adjudicator should follow the instructions in RS 00205.295 and GN 01010.815 to obtain a legal precedent opinion about its EI status.

QUESTION PRESENTED

Your memorandum inquired as to whether the cyber charter "home schooling" of Freddie qualifies him as a full-time student entitled to receive student benefits.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Pennsylvania and federal law. For your convenience, we have also cited relevant provisions of the Program Operations Manual System (POMS) derived from the federal law. It is our opinion that Freddie' attendance at the Pennsylvania Leadership Charter School (PALCS), a cyber charter school approved by the Commonwealth of Pennsylvania, satisfies the federal regulation requirement at 20 C.F.R. § 404.367 for full-time attendance at a secondary program approved by the state in which it is located. We also believe that satisfies the regulation's requirement that he carry a subject load considered full-time for day students under the standards and practices of the school, and that he attend a non-correspondence course of at least thirteen weeks in duration for at least twenty hours a week. Therefore, we believe that Freddie satisfies all of the requirements set forth in the federal regulations at 20 C.F.R. § 404.367 for full-time attendance, and is entitled to receive student's benefits beyond attaining the age of eighteen, through the close of the school year in which he turns age nineteen provided that documentation of continued full-time attendance on Form SSA-1372 is obtained.

BACKGROUND

You indicated in your memorandum of February 15, 2007 that Freddie was born on December and reached the age of eighteen on December 11, 2006, when his child's benefits were terminated. You provided a Master Beneficiary Record (MBR) printout indicating that Freddie was receiving auxiliary benefits as a child of Frederick . Freddie reports his residence as Wyalusing, Pennsylvania. Our research assumes that Freddie was a resident of Pennsylvania during the time period relevant to his claim for benefits.

You stated that your research indicated that the legislature of the Commonwealth of Pennsylvania established charter schools by Act 22 in 1997, that cyber charter schools are approved by the Pennsylvania Department of Education, and that you located a listing for the PALCS on the Commonwealth's Department of Education internet site (www.pde.state.pa.us) as an approved operating cyber charter school for 2006-2007. PALCS is headquartered in West Chester, Pennsylvania.

The information that you provided from the Pennsylvania Department of Education web site indicates that charter school applications are submitted to the local school district board of directors where the public charter school is to be located. See also Pa. Cons. Stat. Ann. § 1717-A(c). The charter from the local school district is an agreement or contract between the school district and the charter school. Under the Pennsylvania law in effect for cyber charter schools when PALCS obtained a charter, the school district had the responsibility for approving and renewing charters of cyber charter schools and for oversight of the charter school. The school district was responsible for paying the charter school the increased "Selected Expenditures" for a special education student when the student has been identified as a student in need of special education services and has established an "individualized educational plan." You provided an invoice from the PALCS to the Wyalusing Area School District for Special Education provided monthly from September 2006 through January 2007 in the amount of $5,432.66.

Our research indicates that, effective September 1, 2006, when requesting an initial charter or renewal of its charter, a cyber charter school will apply to the Department of Education rather than the local school district, and that the Department of Education will have oversight over the cyber charter school. However, while still operating under an initial charter issued by a local school district, as is PALCS, the local school district will have oversight of the cyber charter school until it is time to renew the charter. 24 Pa. Cons. Stat. Ann. § 17-1741-A.

You provided a Student's Statement Regarding School Attendance (Form SSA-1372) completed on December 6, 2006, by Freddie and Marilyn , Director of Special Education in the Wyalusing Area School District, Wyalusing, Pennsylvania, the school district in which Freddie resides, indicating that Freddie attends the PALCS thirty-five to forty hours a week, and that the present school year began on September 6, 2006, and will end in June 2007. The Form SSA-1372 also indicates that Freddie attended classes at Wyalusing Valley High School until September 6, 2006, when he began attending PALCS on the internet from home. You provided a documentation indicating the hours that Freddie was connected to the PALCS site from September 6, 2006, through January 10, 2007.

DISCUSSION

1. The Applicable Federal Regulations

The federal regulations at 20 C.F.R.§ 404.352 provide that entitlement to child's benefits ends in the month before the month that the child turns age eighteen, if the child is not disabled or the child is not a full-time student. That regulation further provides that a child may receive student's benefits beyond the age of eighteen provided the child is disabled, or is a qualified full-time student who is not disabled. If an individual attains the age of nineteen in a month of full-time attendance and the school operates on a yearly basis, the student benefits terminate two months after the individual turns age nineteen. See 20 C.F.R. § 404.352(b)(3); and POMS RS 00205.325 (When Student Benefits Terminate).

In order to be considered a full-time elementary or secondary student, an individual must satisfy all of the conditions described in the federal regulation at 20 C.F.R. § 404.367. Paragraph (a) of that regulation defines "full-time student" as one who is attending a school program that provides elementary or secondary education as determined under the law of the state in which the school is located. That regulation further provides that an individual may also satisfy the definition of full-time student if 1) the individual participates in instruction provided at home in accordance with the home school law of the state in which the individual resides; or 2) an individual is in an independent study elementary or secondary educational program in accordance with the law of the state in which he resides that is administered by the local school district. 20 C.F.R. § 404.367(a)(1), (2).

Paragraph (b) of the regulation sets forth requirements for achieving the status of full-time attendance in the three educational settings described above. The course must be a non-correspondence course of at least thirteen weeks in duration, and the individual must carry a subject load that is considered full-time for day students under the institution's standards and practices. If the individual is in a home-schooling program, the individual must carry a subject load that is considered full-time for day students under the standards and practices set by the state. Paragraph (c) of the regulation provides that to be in full-time attendance, an individual's scheduled attendance must be at the rate of at least twenty hours per week.

In summary, for purposes of our analysis, because Freddie, a resident of Pennsylvania, is attending a cyber charter school in Pennsylvania, that school must be approved to provide elementary or secondary education by the Commonwealth of Pennsylvania, the jurisdiction in which the school is located. Freddie must also show that the school he attends considers him to be attending full-time based on the school's standards and practices for day students, including carrying a subject load considered full-time for day students, that he is enrolled in a course that is not a correspondence course of at least thirteen weeks' duration at the rate of at least twenty hours a week. 20 C.F.R.§ 404.367; see also POMS RS 00205.300 (What is Full-Time Attendance (FTA)) , RS, 00205.330 (Correspondence Courses) and RS0025.350 (Determining FTA).

Freddie Is Attending a School Providing Secondary Education As Determined by the Commonwealth of Pennsylvania.

Although the text of your memorandum inquired as to whether the Cyber Charter "home schooling" of Freddie meets requirements under the law of Pennsylvania" we believe that, notwithstanding the fact that PALCS is an internet school and can be attended by participating from home, there are significant features that distinguish PALCS from home schooling. Freddie' cyber charter school experience is distinguishable from home schooling (discussed in POMS at RS 00205.275) in that the Pennsylvania Department of Education approved cyber charter schools as public schools, the parent is not primarily responsible for teaching the student as evidenced by the description of the internet classes taught by teaches available in the PALCS Handbook, and the Wyalusing Valley School District's Director of Special Education, not the parent, signed as the certifying official on Form SSA-1372, Student's Statement Regarding School Attendance. Therefore, our analysis will focus on whether Freddie is attending a school that provides secondary education as determined under the law of Pennsylvania. 20 C.F.R. § 404.367(a).

The most significant characteristic of PALCS for purposes of our analysis is that it is a creature of the General Assembly, the legislative body of the Commonwealth of Pennsylvania. The General Assembly enacted legislation in 1997 providing for a process for approval of charter applications for existing public schools or new schools. 20 Pa. Cons. Stat. Ann. § 1717-A. Effective July 4, 2004, the General Assembly included "cyber charter schools" in the definition of charter school. 20 Pa. Cons. Stat. Ann. § 17-1703-A. Moreover, the General Assembly, effective September 1, 2006, assigned the responsibility for approving, issuing, and renewing educational charters to the Pennsylvania Department of Education; that Department listed PALCS as a school that provides secondary education for the school year 2006-07. See 24 Pa. Cons. Stat. Ann. § 17-1741-A, and www.pde.state.pa.us. Further confirming the PALCS' status as an approved school is the Report of Contact that you provided, where Marilyn , the director of special education at the Wyalusing Area School District, stated that the cyber charter school is recognized as an accredited educational alternative by the Commonwealth, and that the Wyalusing district monitors Freddie' curriculum and educational goal attainment through regular meetings with parents. Therefore, the information that you provided indicates, in our view, that Freddie satisfies the federal regulation requirement of attending "a school which provides elementary or secondary education as determined under the law of the State . . . in which it is located." 20 C.F.R. § 404.367(a); POMS RS 00205.200A (What is An Educational Institution).

3. Freddie Is Attending A School that Provides a Full-Time Secondary Program and Is Considered by that School to be Carrying a Subject Load that Is Full-Time for Day Students.

Our research confirms that PALCS complies with the Commonwealth of Pennsylvania's requirement for every secondary school, including a cyber charter school, that it be open 180 days a year and in operation for 990 hours per year. See Pa. Cons. Stat. Ann. § 17-1715-A(9); 22 Pa. Code § 11.1, and PALCS Parent and Student Handbook 2006-2007 (Handbook), available at www.PALCS.org as a link in the Frequently Asked Questions section. Charter schools must report to the student's school district of residence when a student has accrued three or more days of unexcused absences. It is the responsibility of the school district to enforce the compulsory attendance laws in accordance with the Pennsylvania Public School Code.

Although no daily hours of attendance are explicitly required by the Pennsylvania statutes or code of regulations, the requirement of 990 hours of operation a year represents a daily attendance rate requirement of 5.5 hours per day. There are no stated hours of required daily connectivity in the information provided on the PALCS website. However, a PALCS student is required to log on every day that the cyber school is in session unless his absence is excused for the reasons stated in the Handbook. A PALCS student is also required to complete courses that satisfy the Pennsylvania requirements for graduation from a secondary school. See PALCS Handbook at 57.

According to your Report of Contact with Marilyn , on behalf of the Wyalusing Area School District, which pays PALCS for the Special Education services provided to Freddie, the school district considers Freddie to be in full-time attendance based on his verified attendance at the PALCS of well over forty hours a week. You provided a log of hours supplied by the PALCS indicating 454 hours of connectivity for Freddie from September 9, 2006 through January 10, 2007. Over this period of approximately fifteen weeks that the cyber school was in session, Freddie was online more than thirty hours a week. Your Report of Contact with Marjon of the PALCS indicates that these hours represent only the time spent online, and do not include intervening time spent offline doing examples, readings, and otherwise completing lessons. In addition, Marilyn indicated that Freddie' school day actually approximates eight hours.

With respect to the regulatory requirement at 20 C.F.R. § 404.367(b) that student is "carrying a subject load which is considered full-time for day students under the institution's standards and practices" we note that Marilyn monitored Freddie' course work and his educational goals, and signed a statement to the effect that he was attending school approximately forty hours a week. We believe that because she is charged with oversight of his course work, and approved his course work as well as certified that he was attending PALCS full-time, this action satisfies the requirement that a student carry a course load consistent with that of a full-time day student at PALCS. See POMS RS 205.350 (stating that SSA policy is to accept the school official's statement regarding full-time attendance).

Therefore, based on the information that you provided, we believe that Freddie has complied with the standards and practices expected of a full-time student who attends a Pennsylvania secondary school through December 6, 2006, the date that Marilyn signed the Form SSA-1372. We recommend that you obtain further documentation of Freddie' continued attendance since December 6, 2006 at PALCA on Form SSA-1372 .

4. Freddie is Enrolled in a Non-correspondence Course of at Least Thirteen Weeks' Duration.

Although the regulations do not define a correspondence course, the POMS at RS 00205.330 (What is Full-Time Attendance) define a correspondence school as "a school that teaches by mailing lessons and exercises to the student. Upon completion, the student returns the exercises to the school for grading."

We believe that the information that you provided, along with our additional research, indicates that Freddie is not enrolled in a correspondence course. According to the PALCS website, www.palcs.org, students who require Special Education are assigned to Special Education teachers who work closely with families to monitor the progress of students as they attend online classes. The teachers are in touch "constantly" through email and telephone calls. At PALCS live teachers provide instruction in the online classroom allowing students to attend class and do class work wherever they can connect to the World Wide Web. PALCS utilizes fully interactive technology that allows for live classroom instruction, interactive discussion online, and periodic conferences for students. Therefore, this interactive educational experience is significantly distinguishable from a traditional correspondence course described in the POMS as a school that teaches by mailing lessons and exercises to the student.

Moreover, another feature that distinguishes the PALCS from a remote correspondence course, is the fact, as Marilyn indicated in your Report of Contact on January 10, 2007, that the Wyalusing Area School District monitors Freddie' curriculum and educational goal attainment, and approves his coursework. This additional oversight and involvement of the local school district sets Freddie' educational program apart from a traditional correspondence course. Therefore, we believe that Freddie' PALCS experience is not that of a correspondence course as contemplated by the regulations or the POMS.

The information that you provided indicates that Freddie meets the requirement of enrollment in a course of study that is of at least thirteen weeks' duration. The POMS at RS 00205.315 (Duration of a Course of Study) clarify SSA policy that duration of a "course of study" refers to the entire course of study (e.g., a four-year high school program), and not the individual course offering or other segment of the entire course (i.e., a semester or summer session). Freddie' is enrolled in a secondary education school that contemplates a four-year course of study ending in graduation. See PALCS Handbook. Therefore, Freddie attends a course that exceeds a duration of thirteen weeks. Marjon indicated that Freddie is taking courses at the ninth grade level. The fact that he will not graduate from high school before turning age nineteen does not diminish the fact that he is enrolled in a course of study that exceeds thirteen weeks' duration.

5. Freddie Meets the Attendance Requirement in 20 C.F.R.§ 404.357(c) of 20 Hours a Week.

Although the federal regulation is silent as to the method of proving full-time attendance, the POMS at RS 00205.350 (Determining FTA) instructs that Form SSA-1372 is to be used to verify full-time attendance. The POMS provision specifies that the student must complete and sign page two of the SSA-1372, then take the form to a school official for completion of the "Certification by School Official" portion of the form on page two. The school official must answer the questions and complete the signature line in the "Certification by School Official" part of the form. If the school official answers "yes" to both questions and completes the signature line, SSA considers the student's school attendance to be verified.

You provided a Form SSA-1372 completed by Freddie and Marilyn , Director of Special Education in Wyalusing Valley School District, indicating that Freddie attends the PALCS school thirty-five to forty hours a week. Because Marilyn , as a representative of the local school district, has oversight of Freddie' participation in the PALCS, we have no reason to question that this form can be relied upon to determine that Freddie satisfies the federal requirement of attendance of at least twenty hours a week. Furthermore, your report of contact with Marjon , an official of the PALCS, supports the information provided on the SSA-1372 regarding Freddie ' attendance of more than twenty hours per week. However, as previously noted, we recommend that you obtain updated information regarding Freddie' attendance on Form SSA-1372 for the period following December 6, 2006, when Marilyn signed the SSA-1372 that you provided to us.

CONCLUSION

We believe that because Freddie (1) is attending PALCS, a cyber charter school that provides secondary education and has been approved as such by the Commonwealth of Pennsylvania; (2) is attending PALCS full-time according to the school and the supervising school district and consistent with the Pennsylvania requirements for day students; (3) is not enrolled in a correspondence course; and because (4) his course exceeds thirteen weeks in duration; and (5) he attends PALCS classes in excess of twenty hours a week; he is entitled to student's benefits while attending the PALC charter school provided that he continues to provide satisfactory documentation of full-time attendance.

Michael Mc Gaughran

Regional Chief Counsel

By: ____________________

Patricia M. Smith

Assistant Regional Counsel